Abstract
In 2025, the Individuals with Disabilities Education (IDEA) will have been the primary law driving the field of special education for 50 years. A contentious area of disagreement has been the relationship between two primary mandates of the law: the obligation of schools to provide a free appropriate public education (FAPE) to eligible students with disabilities and the obligation to place these students in the least restrictive environment (LRE) appropriate to each student’s individual needs. The conflict over LRE can be traced throughout the history of IDEA, in debates referenced as “mainstreaming,” “regular education initiative,” “inclusion,” and “full inclusion.” In this case, we draw on (a) Congressional intent as shown in the writings of a co-sponsor of the law, (b) the language of the law and regulations, (c) special education rulings of the U.S. Supreme Court and other U.S. Courts of Appeals addressing FAPE and LRE, and (d) policy guidance from the U.S. Department of Education. We argue that there is no basis for believing that FAPE and LRE are in conflict. Rather, the FAPE requirement of the IDEA is the primary obligation of school districts, and it sets the parameters for determining the LRE. To believe otherwise represents a fundamental misunderstanding of the law. We describe how for students eligible under the category of learning disabilities, this perceived conflict has been especially challenging. Historically, the IDEA has made a distinction between high-incidence disabilities, those that occur more frequently, and low-incidence disabilities, those that occur less frequently. At some point, these distinctions morphed into a belief that high-incidence disabilities required less-intensive interventions and were more suited to regular class placement than those students with low-incidence disabilities. This distinction is incorrect. For each student identified as eligible for special education services, the determination of LRE should be an individualized decision based on student needs and where those needs can be best met. This discussion is a critical one for students with learning disabilities and all students with disabilities who may require intensive individualized supports, regardless of prior conceptions of low- and high-disability categories.
Showing posts with label FAPE. Show all posts
Showing posts with label FAPE. Show all posts
Wednesday, January 1, 2025
FAPE in the LRE
Wednesday, July 12, 2023
The Perez Case
In The Politics of Autism, I write about special education and the Individuals with Disabilities Education Act. II also discuss the day-to-day challenges facing autistic people and their families.
The Perez case that was decided by the Supreme Court in March highlights such concerns. Between the ages of 9 and 20, Miguel Luna Perez attended Sturgis Public School District in Michigan. Because he is deaf, Miguel was entitled to have an American Sign Language (ASL) interpreter in his classes. However, the assigned aide lacked qualifications and provided inadequate support, hindering Miguel’s learning and communication. Moreover, Sturgis school officials misrepresented Miguel’s progress, leading the Perez family to believe he would graduate on time, only to be informed months before graduation that he would not receive a diploma....
In a unanimous decision written by Justice Gorsuch, the Supreme Court adopted the Perez family’s interpretation. The Court clarified that section 1415(l) applies only to lawsuits seeking relief available under the IDEA. It emphasized that “remedies” and “relief” are synonymous in the context of section 1415, as treated in other parts of the statute.
As a result, the exhaustion requirement did not bar the Perez family’s ADA lawsuit because the damages sought were not available under the IDEA. The Court’s decision strengthens the implementation of FAPE rights, allowing students to seek monetary damages under non-IDEA civil rights laws and injunctive relief through IDEA administrative procedures.
Ultimately, the Court’s recent ruling significantly shifts the power dynamic between students with disabilities, their families, and school districts. It empowers students and parents by providing them with essential tools to address and rectify violations of disabled students’ educational rights.
Friday, April 29, 2022
LAUSD Agrees to Address Special Ed Failure
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all.
Los Angeles Unified failed to provide appropriate education to students with disabilities during the pandemic as required under federal law and must provide extra services to help some of the most vulnerable students recover from the significant voids in their learning, the U.S. Department of Education announced Thursday.
The investigation, conducted by the department’s Office for Civil Rights, confirms what many parents have alleged since schools were first closed — that they basically had to fend for themselves during distance learning as their children were left with little if any education and specialized assistance. The district has entered into a voluntary agreement with the federal department to fix its failings.
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The investigation found that the district failed to provide services identified in students’ legally required education plans, failed to accurately or sufficiently track services, and informed staff that the district was not responsible for providing so-called “compensatory services” aimed at helping students make up for what they lost, because the district was not at fault for the campus closures.
The agreement calls for the district to offer make-up services “to remedy any educational or other deficits that result from a student with a disability not receiving the evaluations or services to which they were entitled.”...
Attorney Valerie Vanaman, who has been critical of the district’s treatment of students with disabilities throughout the pandemic, said she was happy about the agreement but continues having concerns about the district’s ability to follow through.
“This is a nice outcome to see. It gets us partway there, " she said. “Where the rubber hits the road is ‘how will they actually implement it?’”
Thursday, March 10, 2022
Private Schools and IDEA
In The Politics of Autism, I write about special education and the Individuals with Disabilities Education Act.
Part B of the Individuals with Disabilities Education Act (IDEA Part B) at Section 612(a)(10)(A) and its implementing regulations at 34 C.F.R. §§ 300.130 through 300.144 contain specific requirements regarding State and local responsibilities for equitable services for parentallyplaced private school children with disabilities.1 The U.S. Department of Education (Department), Office of Special Education and Rehabilitative Services (OSERS) issues this Questions and Answers (Q&A) document to provide State educational agencies (SEAs), local educational agencies (LEAs), parents, private school officials, advocacy organizations, and other interested parties with information regarding these requirements.2
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As explained in this Q&A document, children with disabilities placed in private schools by their parents where FAPE is not at issue do not have an individual entitlement to the special education and related services they would receive if they were enrolled in a public school or placed in a private school by the LEA as a means of ensuring FAPE is made available.3 Depending on State law, private schools may not be required to meet State personnel or curriculum standards.4 Further, children with disabilities placed by their parents in private schools do not have the right to all of the protections under IDEA. For example, IDEA’s due process procedures do not apply to issues regarding the provision of services to any particular parentally-placed private school child with a disability. Parents of such children may only use IDEA’s due process procedures to resolve matters concerning an LEA’s obligation to meet the child find requirements.5 While IDEA provides no individual entitlement to children with disabilities whose parents have placed them in a private school when FAPE is not at issue, the law does require that an LEA spend a proportionate amount of its IDEA Part B funds to provide equitable services to this group of children, which could include direct and/or indirect services.6 In making these decisions, IDEA requires that the LEA engage in timely and meaningful consultation to determine which children with disabilities from this group will be designated to receive special education and related services.7 Therefore, it is possible that some of these parentally-placed private school children with disabilities will not receive any special education and related services.
Tuesday, February 22, 2022
FAPE During COVID
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all.
From the US Department of Education:
The U.S. Department of Education’s (Department) Office for Civil Rights (OCR) issues this fact sheet to remind elementary and secondary public schools of their obligations under Section 504 of the Rehabilitation Act of 1973 to provide appropriate evaluations and services to students with disabilities during the COVID-19 pandemic, including schools’ responsibility to provide compensatory services.
Background: Section 504 of the Rehabilitation Act
Section 504 is a Federal law that prohibits disability discrimination and guarantees that students with disabilities have equal access to educational opportunities, including a free appropriate public education (FAPE) in public elementary and secondary schools.1 FAPE under Section 504 is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met.2
Students with Disabilities Retain Their Right to FAPE During the COVID-19 Pandemic
Although the COVID-19 pandemic has created unique challenges for schools, students, and parents, the responsibility for schools to comply with Section 504 continues regardless of how schools provide education: virtually, in-person, or with a hybrid learning model. In ensuring eligible students with disabilities receive FAPE under Section 504, schools must make decisions that consider students' health, safety, and well-being.3
When needed to ensure students with disabilities are receiving FAPE, schools must convene a group of persons knowledgeable about the student to make an individualized determination of whether a student’s current services should be changed due to the effects of the COVID-19 pandemic, such as the impact of loss of services on skills, mental health and trauma concerns, or the physical health effects of long COVID (post-COVID conditions).4 Regardless of the challenges schools face during the pandemic, students with disabilities retain their right to FAPE under Section 504.
Students with Disabilities May Be Entitled to Compensatory Services if They Did Not Receive Appropriate Evaluations or Services During the COVID-19 Pandemic
If a student with a disability did not receive appropriate evaluations or services, including the services that the school had previously determined they were entitled to, then the school must convene a group of persons knowledgeable about the student to make an individualized determination whether, and to what extent, compensatory services are required.5 Unlike the FAPE inquiry, which requires the group to determine appropriate services going forward, the compensatory services inquiry requires looking backwards to determine the educational and other benefits that likely would have accrued from services the student should have received in the first place.6
Compensatory services are required to remedy any educational or other deficits that result from the student with a disability not receiving the evaluations or services to which they were entitled.7 For example, a school may need to provide compensatory services for a student who did not receive physical therapy during school closures or for a student who did not receive a timely evaluation. Providing compensatory services to a student does not draw into question a school’s good faith efforts during these difficult circumstances. It is a remedy that recognizes the reality that students experience injury when they do not receive appropriate and timely initial evaluations, re-evaluations, or services, including the services that the school had previously determined they were entitled to, regardless of the reason.
In general, the individualized determinations of whether, and to what extent, compensatory services are required must be made by a group of persons knowledgeable about the student, including for example, school nurses, teachers, counselors, psychologists, school administrators, social workers, doctors and/or family members.8 The following factors may be relevant for the group of knowledgeable persons to consider in determining the appropriate type and amount of compensatory services:
the frequency and duration of missed instruction and related services;
whether special education and/or related services that were provided during the pandemic were appropriate based on the student’s individual needs;
a student’s present level of performance;
previous rates of progress;
the results of updated evaluations;
whether evaluations were delayed; and
any other relevant information.9
Ideally, the team of knowledgeable persons will come to a mutually acceptable decision regarding compensatory services to mitigate the impact of the COVID‑19 pandemic on the child’s receipt of services.
Under Section 504, if a parent or guardian believes that their child has not received or is not receiving FAPE, does not have equal access to other services provided by the school, or did not receive or is not receiving appropriate compensatory services, they may seek a hearing under the school’s Section 504 due process procedures10 or file a complaint with OCR. A school’s agreement to provide compensatory services is one way OCR remedies disability compliance issues when appropriate.
For information on how to file a complaint with OCR, please see https://www2.ed.gov/about/offices/list/ocr/docs/howto.html.
Monday, August 30, 2021
Education Dept to Probe Mask Mandate Bans
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all.
People with autism and other disabilities appear to be at higher risk from COVID.
From the US Department of Education:
Today, the U.S. Department of Education's Office for Civil Rights (OCR) opened directed investigations in five states exploring whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education.
"The Department has heard from parents from across the country – particularly parents of students with disabilities and with underlying medical conditions – about how state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally," said U.S. Secretary of Education Miguel Cardona. "It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve. The Department will fight to protect every student's right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall."
OCR sent letters today to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah, outlining how prohibitions of universal indoor masking prevent school districts from implementing health and safety policies that they determine are necessary to protect students from exposure to COVID-19, including those with underlying medical conditions related to their disability. OCR is concerned that state mask restrictions on schools and school districts "may be preventing schools…from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19," the letter states.
OCR has not opened investigations in Florida, Texas, Arkansas, or Arizona because those states' bans on universal indoor masking are not currently being enforced as a result of court orders or other state actions. Due to these rulings and actions, districts should be able to implement universal indoor masking in schools to protect the health and safety of their students and staff. However, the Department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed.
The investigations will explore each state's compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504), which is a federal law that protects students with disabilities from discrimination based on their disability. Section 504 guarantees qualified students with disabilities the right to a free appropriate public education in elementary and secondary school, commonly referred to as FAPE. This includes the right of students with disabilities to receive their education in the regular educational environment, alongside their peers without disabilities, to the maximum extent appropriate to their needs.
The investigations will also explore whether statewide prohibitions on universal indoor masking violate Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, including public education systems and institutions. OCR's regional offices will begin collecting data from each state educational agency as part of the direct investigations over the coming weeks.
During the investigation, OCR is a neutral factfinder, collecting and analyzing relevant evidence from state education agencies and other sources as appropriate prior to reaching determinations in these matters. Opening a directed investigation does not imply that OCR has decided whether there has been a violation of a law that OCR enforces.
On Aug. 18, 2021, President Biden issued a Presidential Memorandum directing the Secretary of Education to "assess all available tools in taking action, as appropriate and consistent with applicable law" to ensure that governors and other officials are giving all students the opportunity to participate and remain in full-time, in-person learning safely, without compromising their health or the health of their families. In response to the President's call, Secretary Cardona laid out the steps the Department of Education can take to protect the rights of all students to access safe in-person learning equally, including using the enforcement authority of the Office for Civil Rights.
Secretary Cardona also sent letters earlier this month to each of the states that are the subject of the direct investigations that OCR announced today. The letters note that: "The safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educators, and that families have confidence that their schools are doing everything possible to keep students healthy."
Wednesday, March 24, 2021
Students with Disabilties, Before and After the Pandemic
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all. Providing education, social services, and therapies is proving to be very difficult.
Among the most critical pre-pandemic inequities that have not received sufficient attention is the fact that many districts are not meeting their legal and moral obligation to educate students with disabilities, which must include providing needed mental health services, behavioral supports and educationally sound interventions by well qualified staff. This report begins by revealing serious preexisting conditions of inadequate support that are likely to be exacerbated by the current pandemic. We also summarize the pandemic’s disparate impact, which is resulting in greater losses of instructional time amidst increasing experiences of trauma. This report argues that post-pandemic we will need to do much more than return to the pre-pandemic efforts in order to avoid serious and continuing hardship to students, and especially to students of color with disabilities. This includes, but is not limited to, additional steps to ensure that all students with disabilities who need supports and services to receive a free appropriate public education (FAPE) have those needs met, and that they are not excluded because of behaviors caused by their disability.
California is an example of pandemic problems. Richard Cano and Elizabeth Aguilera at CalMatters:
California’s decentralized approach to school reopenings this year has meant widely uneven opportunities for in-person services for special-needs students. As early as last summer, some public schools began offering in-person instruction or support to students with Individualized Education Plans — a plan every special education student has that outlines goals and includes special services they require as a guidepost for everyone who works with them.
Though the state’s reopening rules and a recent legislative deal prioritize in-person learning for special-needs students, many of the state’s large, urban school systems such as West Contra Costa and Los Angeles remain in distance learning.
Three-quarters of 300 Los Angeles Unified parents said their kids had regressed or lost skills, according to a Speak Up survey last fall. Though California’s largest school district has intermittently allowed in-person services for special-needs students, only about 1% of the district’s students benefited from it as it was based on educators and families volunteering to come back.
Those findings echo the concerns experts had when the pandemic started. Many students with disabilities require specialized care that one can’t reasonably be expected from parents, Connie Kasari, a human development professor at UCLA’s Graduate School of Education and Information Studies, told CalMatters last March.
“It’s one thing to put a child who can understand in front of a computer screen to do their lesson, do their homework, and quite another thing when the child doesn’t understand that,” Kasari said. “What is that child going to do? It could be that they’re just not getting any kind of education at all.”
Monday, December 21, 2020
Hispanic Students and Private Placement
In The Politics of Autism, I write about special education and the Individuals with Disabilities Education Act.
Ashley Okwuosa and Sharon Lurye of The Teacher Project at USA Today:
Nationally, Hispanic students are consistently the most underrepresented group in terms of accessing private placement. In 2019, the Teacher Project surveyed all 50 states for data on students placed at private special education schools at the public’s expense. Of the 15 states where demographic data was available, Hispanic students were significantly underrepresented in 13 of them. In Texas and California, Hispanic students make up half of the special education population but 29% and 36% of students in private placement, respectively. In Massachusetts, Hispanic students comprise nearly a quarter of the special education population but only 14% of those receiving private placement.
In New Jersey, where the number of Hispanic students has grown rapidly in many communities, the statewide gap is smaller, but that masks stark disparities at the county level. In Camden, half of special education students are Hispanic compared with 15% of those receiving private placement. In Ocean County, one-fifth of special education students are Hispanic compared with only 2% in private placement.
Two main factors cause the gaps: Parents with limited English struggle to navigate their way through a bureaucratic, technical and jargon-laden process – if they even hear about private placement. And very few private schools that serve children with special needs have language support programs.“Families have to choose between English-as-a-second-language services and special education services,” said Jennifer Rosen Valverde, a professor at Rutgers Law School who focuses on special education.
This became even clearer as the COVID-19 pandemic upended education. Remote learning made it next to impossible for many parents to find special education and language support for their children.
Saturday, October 24, 2020
FAPE During COVID
In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide more than minimal educational benefits to students with disabilities.
Accessing a free and appropriate public education for students of all ages with autism can be a challenge in and of itself. During a pandemic, it has become an even more confusing, difficult experience. Our Advocacy and Supports & Services teams are here to walk through some of the most frequently asked questions that we have received during COVID-19.Speakers:
- - Judith Ursitti, Director of State Government Affairs
- - Christa Stevens, Director of State Government Affairs
- - Bart Devon, Manager of Public Policy
- - Andrew Nelson, Director of Autism Response Team
- - Arianna Esposito, Director of Lifespan Services & Supports
Wednesday, September 2, 2020
Court Decision on IDEA and 21-Year-Old Students
In The Politics of Autism, I write:
When disabled people reach their 22d birthday, they no longer qualify for services under IDEA. ... People in the disability community refer to this point in life as “the cliff.” Once autistic people go over the cliff, they have a hard time getting services such as job placement, vocational training, and assistive technology. IDEA entitles students to transition planning services during high school, but afterwards, they have to apply as adults and establish eligibility for state and federal help. One study found that 39 percent of young autistic adults received no service at all, and most of the rest got severely limited services.
Essentially, the ruling by the appeals court means that 22-year-olds will be able to receive educational services this school year.
The state argued that even though schools provide adult education programs to nondisabled individuals 21 years and older, that the programs don’t constitute “public education.”
But the lower court found that children with disabilities remain eligible to receive a free appropriate public education until they reach the age of 22.
The state, including the State Board of Education, argued: “that because GED, AHSCD and NEDP constitute ‘very minimal secondary school completion programs,’ adult education in Connecticut does not provide the equivalent of a secondary school public education to general education students.”
A three-judge panel of the Second Circuit Court did not agree and sided with the plaintiff in the case.
A spokeswoman for Attorney General William Tong said they are “reviewing the decision and evaluating next steps.”
In June, U.S. District Court Judge Charles Haight Jr. ruled that the Connecticut State Board of Education’s decision to limit services to special education students after their 21st birthdays violates the Individuals with Disabilities Education Act.
Thursday, July 30, 2020
Conflict Over Liability
In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.
In a joint report issued this month by AASA, the School Superintendents Association; the National School Boards Association, and the Association of Educational Service Agencies, the groups document growing concern among school leaders about IDEA-related litigation as schools struggle to fulfill students' individualized education programs during the pandemic.
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More than four months have passed since schools began to shut down to curb the spread of coronavirus. Thus far, just a handful of federal lawsuits have been filed on behalf of students who receive special education services.
Anticipating the numbers will soon rise, the organizations behind the report wanted Congress to include the liability protections in the latest round of COVID-19 response legislation, but their request did not make the cut.
Lindsay Jones, the executive director of the National Center for Learning Disabilities, said the report and the related push for legislation was just another attempt to push for waivers that would let schools off the hook for their responsibility to educate all students.
"That report is a wolf in sheep's clothing," Jones said during the Education Writers Association's National Seminar earlier this month. "There's not much evidence that these types of lawsuits are coming forward."
Monday, July 20, 2020
Education Bureaucracy Wants Protection from IDEA Litigation
In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.
As schools prepare to reopen in the fall, there is a growing concern that school districts and educational service agencies will face unparalleled rates of litigation for their inability to meet requirements under the Individuals with Disabilities in Education Act (IDEA) during the COVID-19 pandemic. This concern is well-founded. IDEA guarantees eligible students with disabilities a “free appropriate public education”
(FAPE) and a right to pursue a complaint through a due process hearing and federal court. Similarly, Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) require equal access to educational opportunities for students with disabilities. Also, the regulations implementing Section 504 require FAPE. However, during this unprecedented pandemic, FAPE comes with tremendous
costs to budgets and additional burdens on personnel that challenge school districts trying their best under the circumstances to meet the requirements.
To gauge the degree of concern, the Association of Educational Service Agencies (AESA) surveyed a subset of its members in 28 states between May 20 and June 16, 2020. AASA, the School Superintendents Association, also surveyed school leaders nationwide on the school response to the coronavirus pandemic in May of 2020. The National School Boards Association (NSBA) has been collecting examples of IDEA-related concerns across the country since the beginning of COVID-19. The data gathered by these organizations informs our understanding of how potential and actual special
education litigations related to meeting the IDEA requirements during the pandemic may impact the budgets and operations of schools.
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“School board members and other public school leaders have managed a herculean task to serve students during the pandemic,” said Anna Maria Chávez, the NSBA Executive Director & Chief Executive Officer, in a recent national reopening collaboration document11 released by the National Labor Management Partnership (NLMP).
“We all agree that FAPE is important, but the legal understanding of FAPE during a pandemic cannot be the same thing as FAPE under normal educational circumstances. ESAs and school districts are doing the best they can to ensure all students are appropriately served when schools are closed due to a pandemic. Flexibility
at the federal government to shield districts from frivolous lawsuits is essential to putting ESAs and districts on a path towards a successful next school year,” according to Joan Wade, AESA Executive Director.
AASA Executive Director Daniel Domenech stated that “Congress must act swiftly to provide liability protection to districts around IDEA. District leaders need to be focused on addressing learning loss, not preventing litigation. This is not a free pass for districts to stop serving students with disabilities appropriately. Instead, this is an opportunity to provide reasonable, temporary, litigation protection for the vast majority of districts that are doing everything feasible to meet IDEA during the pandemic, but simply cannot meet every requirement exactly as intended for every single child.”
Although the U.S. Department of Education recognized that exceptional circumstances may affect how special education and related services/supports are provided to students with disabilities and would offer flexibility12, the policy support has been inadequate. The data from AESA, AASA, and NSBA suggest the flip side of flexibility, that is, the ambiguity of federal or state policies could lead to legal challenges for school practitioners.
Friday, June 19, 2020
Endrew F.: So Far, Disappointment in Court
In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.
It has not had the effect that parents hoped for.
William Moran, The IDEA Demands More: A Review of FAPE Litigation after Endrew F., 22 N.Y.U. J. Legis. & Pub. Pol’y 495 (2020)
It has not had the effect that parents hoped for.
William Moran, The IDEA Demands More: A Review of FAPE Litigation after Endrew F., 22 N.Y.U. J. Legis. & Pub. Pol’y 495 (2020)
School districts prevailed in the majority of IEP disputes decided since Endrew F. Between March 22, 2017 and March 22, 2020, 115 of 146 decisions (78.8%) found that IEPs satisfied the law. One hundred ten (75.3%) of those decisions affirmed lower court findings in favor of school districts. In the same time period, only 31 decisions (21.2% of the total) favored student litigants. These cases thus suggest - though not without limitation- that school districts dominated the courtroom before Endrew F., and continue to after Endrew F. For those expecting a sea change in FAPE litigation,126 there are 115 canaries in the IDEA coal mine.
Tuesday, April 28, 2020
DeVos Won't Seek IDEA Waiver Authority
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all. Providing education is proving to be very difficult.
U.S. Secretary of Education Betsy DeVos today reaffirmed her long-held position that individualized education must take place for all students, including students with disabilities. As a result, the Secretary is not recommending Congress pass any additional waiver authority concerning the Free Appropriate Public Education (FAPE) and Least Restrictive Environment (LRE) requirements of the Individuals with Disabilities Education Act (IDEA), reiterating that learning must continue for all students during the COVID-19 national emergency.
As requested by Congress in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Secretary DeVos examined certain federal education laws to determine what, if any, additional waiver authority the Secretary believes is necessary to provide limited flexibility to state and local education agencies during this unprecedented time. The Secretary determined there is no reason that a student's access to FAPE cannot continue online, through distance education or other alternative strategies.
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While not advising any waivers to the core tenets of IDEA, the Department is requesting that Congress consider additional flexibilities on administrative requirements under the Perkins Act, the Rehabilitation Act of 1973, and the IDEA.
The Secretary requested that Congress defer the work or repayment requirements or allow credit to be given for the service obligation for recipients of IDEA personnel preparation grants (personnel development scholarships) if employment was interrupted by COVID-19.
Regarding the Perkins Act, the Secretary is also recommending a waiver that would allow local education agencies (LEAs) to keep any funds allotted to them for the 2019-2020 academic year that they have not spent during the COVID-19 national emergency. Without this waiver, LEAs would otherwise lose this money and have to return it to the state.
The Secretary also requested Congress to permit Vocational Rehabilitation funds to be used to replace expired or spoiled food products at Randolph-Sheppard vending sites required to close due to COVID-19, thus providing support to vendors and allowing facilities to reopen more efficiently following the COVID-19 pandemic.
The Secretary recommended several additional waiver authorities relating to the Perkins Act, the Adult Education and Family Literacy Act, the IDEA, and the Rehabilitation Act of 1973. For a complete list of waiver recommendations and to access the full Recommendation of Waiver Authority report to Congress, click here.
Wednesday, March 25, 2020
FAPE, Coronavirus, and Distance Instruction
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all.
To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), † Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent anyschool from offering educational programs through distance instruction.
School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instructionprovided virtually, online, or telephonically.Carolyn Jones at EdSource:
The issue has direct implications for the nearly 800,000 special education students in California, who comprise 12.5 percent of the state’s public school enrollment, and who are now at home, with their often carefully constructed education programs completely upended.
DeVos’ announcement was welcomed by special education advocates, who said it provided clear guidance but enough flexibility for districts to find effective ways to meet the needs of special education students.
However, school administrators feel that the guidance they are receiving from both Washington and Sacramento is inadequate to assure school districts that they won’t face legal action if they are unable to provide all special education students with what is termed an “appropriate education” using online tools.
“(The state and federal guidance) is not nearly enough,” said Wesley Smith, executive director of the Association of California School Administrators, representing over 17,000 superintendents, principals and other administrators. “We need explicit waivers of explicit provisions. … Our districts are asking for relief so they can enact the governor’s orders to continue providing high-quality education.”
Thursday, March 19, 2020
OCR on Online Education and Coronavirus
In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families. Those challenges get far more intense during disasters. And coronavirus is proving to be the biggest disaster of all.
The Office for Civil Rights (OCR) presents this short webinar on online education.
Fact Sheet from OCR:
The Office for Civil Rights (OCR) presents this short webinar on online education.
Fact Sheet from OCR:
Students with Disabilities at Elementary and Secondary Schools School officials have an obligation to avoid discrimination on the basis of disability under Title II and Section 504, while cooperating with public health authorities to ensure that students with disabilities have access to the school’s education program. School officials should acknowledge the expertise and role of public health authorities, as well as parental concerns, to determine whether students should stay home.
If a student who has an individualized education program (IEP) through the Individuals with Disabilities Education Act, or is receiving services under Section 504, is required or advised to stay home by public health authorities or school officials for an extended period of time because of COVID-19, provision should be made to maintain education services. This also applies if the student is absent from school as advised by the student’s treating physician, consistent with school policy and documentation requirements. During such absences, if the school is open and serving other students, the school must ensure that the student continues to receive a free appropriate public education (FAPE), consistent with protecting the health and safety of the student and those providing that education to the student. If feasible, the student’s IEP Team, or the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, can be utilized to assist with the effort to determine if some, or all, of the identified services can be provided through alternate or additional methods. Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during an extended school closure, especially when continuing education must be provided through distance learning.
If a school district closes its schools and does not provide any educational services to the general student population, then a school would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the school must return to providing special education and related services to students with disabilities in accordance with the student’s IEP or, for students entitled to FAPE under Section 504, consistent with any plan developed to meet the requirements of Section 504.
The Department understands that there may be exceptional circumstances that could affect how a particular service is provided. If a student does not receive services after an extended period of time, the student’s IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost.
Additionally, IEP Teams are not required to meet in person while schools are closed. If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504. For more information on providing services to students with disabilities during the coronavirus outbreak, see: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf
Students with Disabilities at Postsecondary Schools Officials at postsecondary schools should consult with public health officials in determining how to respond when there are cases of coronavirus in the community. Whatever decisions are made by the school (such as decisions to temporarily suspend classes), schools must continue to comply with their non-discrimination obligations under federal civil rights laws, including Section 504 and Title II.
Thursday, July 25, 2019
Least Restrictive Environment
In The Politics of Autism, I write about special education and the Individuals with Disabilities Education Act.
A July 18 release from COPAA:
A July 18 release from COPAA:
Today, a diverse coalition of professional, legal and advocacy organizations met with Department of Education Chief of Staff Nate Bailey, Acting General Counsel Reed Rubenstein and OSERS Assistant Secretary Johnny Collett to discuss what we considered to be an imminent threat of a policy reinterpretation of the Least RestrictiveEnvironment (LRE) provisions, which is a cornerstone of the Individuals with Disabilities Education Act (IDEA). Our concern was generated by credible information that the Department of Education was planning to alter or reinterpret the law’s presumption -- that all children with disabilities will be educated in the general education classroom; except in the rare circumstance that the student cannot get a satisfactory education in that environment even with supplementary aids and services. Any reinterpretation of LRE would alter or weaken IDEA’s clear requirement that general education must be the first consideration for placement for every student.
At today’s meeting, we were assured by Mr. Bailey that there would be no such reinterpretation of LRE in the immediate future, and that the Department of Education (Department) would uphold the law. However, they noted that nothing was off the table as part of the Department’s Rethink Framework. They provided assurances to us that they would collaborate with stakeholder groups and experts in the field, though we made it clear to them that we would oppose any and all reinterpretations of LRE – a basic tenet of IDEA - that could infringe upon the civil rights of children with disabilities.
The following is a statement that reflects the position of a broader coalition of stakeholders.
“Our coalition, which represents the diverse community of individuals and organizations that care about, educate and protect the rights of children with disabilities, will vehemently oppose any effort put forward by the Department of Education that alters or re-interprets the law’s presumption. We are shocked that the Department even considered pursuing this course. However, with millions of children, families, teachers and school leaders behind us, we will work together to vigorously protect current law and fight any interpretation of LRE that alters or weakens IDEA’s clear requirement that schools and districts must consider general education first, for every child. We must protect IDEA’s presumption of general education because without it, we can expect to see increases in the inappropriate placement of children with disabilities in more segregated settings which contradicts the clear language, intent, and established legal precedent of the
IDEA.”
Read COPAA's Full LRE Letter to DeVos.
Read CCD LRE Principles.
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